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Summary Classification, creation and termination of servitudes
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- University Of Pretoria (UP)
Summary of servitudes. Classification, creation and termination of servitudes
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Yolandi Cloete ©SERVITUDES
• Week 7
• Muller G et al General Principles of
South African Property Law
(LexisNexis, 2019)- Chapter 11
DEFINITION, CLASSIFICATION &
INTERPRETATION
• Muller G (ed) General principles
of South African property law
(2019) chapter 11.1-11.3
• Fourie v Marandellas Town Council 1972 (2) SA 699 (R)
• Glaffer Investments (Pty) Ltd v Minister of Water Affairs and Forestry
2000 (4) SA 822 (T)
Servitude:
- limited real right (ius in re aliena)
- right to use and enjoyment of another’s property (nemini res sua servit)
- right to insist that the owner refrains from exercising certain entitlements
he or she would have had over the property if it was not for the
servitude
- confers a ‘real right to an advantage out of the property of another
- direct relationship between the holder of servitude and the property =
distinguishes it from a mere contractual right against the owner of the
property
Classification of servitudes:
- praedial servitudes v personal servitudes
- characteristics in common:
✓ both are real rights and protected by property remedies
✓ a servitude is always a right to the property of another person
because the nemini res sua servit principle holds that no person
can hold a servitude in respect of his/her own property
✓ no further servitude may be imposed on an existing servitude
(servitus servititus esse no potest)
✓ both are created and terminated in similar ways
✓ both can take the form of either a positive (active) where the
servitude entitles the holder to do something on or with the
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,Yolandi Cloete ©
servient property ito a negative (passive) servitude where the
holder of the servitude can claim that the owner of the servient
property must refrain from exercising one or more of his/her
ownership entitlements ito ius prohibendi
✓ there is no numerus clausus of praedial or personal servitudes i.e
the praedial servitude can have any content as long as it
adheres to certain validity requirements while a personal
servitude that has the same content as praedial can now be
established against a specific person who is not the owner of a
neighbouring property
Differences between praedial and personal servitudes:
✓ their economic functions differ
✓ praedial servitudes promote the interest of the dominant tenement to
the extent that this tenement may need a right of way to improve its
accessibility, water to increase it fecundity/fertility; sunlight, free flowing
air or a view for its habitability
✓ the creation of a praedial servitude in favour of such a piece of land
will serve the needs of the dominant tenement
✓ personal servitudes promote the interest of a particular person by
providing the servitude holder with a lifelong benefit
Characteristic Praedial Servitude Personal Servitude
Thing to which the -Immovable things -Movable things
servitude relates -Must involve two AND
pieces of land -Immovable things
(dominant tenement
and servient tenement)
In whose favour is the -Affords benefit from -Personal servitude
servitude the land to owner of holder (dominant
dominant tenement in owner) is afforded a
his/her capacity as benefit from the land in
landowner as the his/her personal
servitude increases the capacity and NOT as
value of the dominant the landowner
tenement
Duration -Places a perpetual -Limited lifespan and is
burden on the land extinguished through
and ‘runs with the land’ effluxion of time or
when the holder of the
servitude dies/effluxion
of time (natural person)
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or after 100 years
(juristic person)
Transferability -Inseparably bound -Highly personal
with the land it benefits -Adheres inextricably to
and will vest in new the holder thereby
owner of that land making it impossible to
when it is alienated alienate the right to
someone else in its
entirety
-CANNOT transfer
Nature of burden -Imposes -Personal servitude (like
significant/greater a usufruct) places a
burden on the servient more intense burden on
tenement because the the servient owner ito
burden is in principle limitation of use and
perpetual (continuous) enjoyment entitlement
over a relatively shorter
period than praedial
servitude (like the right
of way or grazing right)
which places a burden
of comparable lower
intensity on the servient
owner perpetually
Divisibility -Indivisible -Divisible
-Operate over the -Operate over only part
whole servient of the servient property
tenement depending depending on its
on whether the nature
servitude is granted in
general terms
(generalis) or special
terms (specialis)
Relationship:
✓ Relationship between servitude holder + servient owner = intricate +
tense
✓ Servitudes can potentially cause conflict/tension: multiple people
simultaneously exercise partially intersecting use rights in the same
property
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